Tom Flanagan, Supreme Court of Canada both got free speech wrong

Reading over the Supreme Court’s recent decision on hate-speech laws once again, the thing that keeps going through my head is: where has the Court been the last twenty years?

The ruling essentially revisits the Taylor decision of 1990, in which the Court upheld the notorious Section 13 (1) of the Canadian Human Rights Act. Yet it contains scant acknowledgement of certain salient events since then. Among other things, it seems completely divorced from the actual experience of how such legislation has been applied.

In Taylor, then Chief Justice Brian Dickson contentedly predicted that, given the court’s interpretation of s. 13 (1) as applying only to “unusually strong and deep-felt emotions of detestation, calumny and vilification,” human rights tribunals would desist from using it as a sword against free expression. The present Court quotes him without irony: “There is little danger,” he wrote, “that subjective opinion as to offensiveness will supplant the proper meaning of the section.”

Little danger. You would never know from this that human rights tribunals, provincial and federal, had in fact spent the last two decades hauling this or that individual or organization in front of them for, inter alia, publishing the Danish cartoons or excerpting a bestselling book about the challenges to Western society from Islamic fundamentalism.

You’d never know the farcical history of the Canadian Human Rights Tribunal in particular, with its perfect conviction record and staff of pretend Nazis filling up the on-line comment boards of the nation. Dickson could perhaps be excused: he was writing in 1990, when the tribunals were just getting warmed up. But how today’s Court could be so purblind is astonishing.

Let’s see, what else has happened in the interval? Oh yes: the Internet. In Taylor, the medium for communicating hate-speech consisted of recorded messages on telephone answering machines (the hate purveyors’, that is: to be “exposed” to their hateful speech, you had to call up the number and listen.) Today, your average 13-year-old could find a vast torrent of equally loathsome material online within seconds, almost all of it out of reach of the human rights commissions.

Indeed, had William Whatcott, the anti-gay nutter whose case precipitated the latest ruling, not chosen the quaintly outmoded medium of handing out printed flyers to deliver his broadsides, I doubt we’d ever have heard of him. The court’s summation of this fundamental technological revolution, which has overturned nearly every assumption about communications — including the efficacy of state censorship? “In terms of the effects of disseminating hateful messages, there is today the added impact of the Internet.”

But a certain unworldliness is hardly the worst of the decision’s defects. It’s more fundamental failing is that it reverses the onus, the burden of proof that must be discharged by one side or the other. A society that takes free speech seriously places the burden on the state to prove why it must be restricted, in the same way and for the same reasons as the accused in a criminal trial is presumed innocent.

But the court signals throughout its disdain for this principle as it applies to those accused of hate speech. (How is this supremely subjective concept, involving as it does appraisals of the emotional state not only of the speaker, but of his intended, though possibly never reached, audience, supposed to be defined? “Objectively,” the court advises.) At various points the ruling seeks to distinguish between those types of speech worthy of protection from state interference, and others, like hate speech, that are further from “the core values” said to justify such guarantees.

It is not, I repeat, up to the speaker to prove why he should be allowed to speak. It is up to the state to prove why he should not

Hate speech, it says, “lies at the periphery of the values underlying freedom of expression.” It “contributes little to the aspirations of Canadians or Canada in either the quest for truth, the promotion of individual self-development, or the protection and fostering of a vibrant democracy.” In other words, hate speech is not useful speech.

But it’s not up to the speaker in a free society to prove his speech is useful — and in any case the court cuts off any possibility of it contributing to the “quest for truth” since it rules out truth as a defence. (I am accused of caricature on this point. Let me quote the Court: “the use of truthful statements should not provide a shield in the human rights context…. not all truthful statements must be free from restriction… To the extent that truthful statements are used in a manner or context that exposes a vulnerable group to hatred, their use risks the same potential harmful effects on the vulnerable groups that false statements can provoke.” Etc. etc. etc.)

It is not, I repeat, up to the speaker to prove why he should be allowed to speak. It is up to the state to prove why he should not. And here, as I argued last time, the court consistently takes a pass, accepting the “reasoned apprehension of harm” in place of evidence. Granted, we are not talking here of a criminal trial, but in a matter as important as freedom of speech, the same principle ought to apply.

And we need not be actually jailing someone to see how speech might easily be suppressed, in the fevered times we live in. A case in point was provided this week by the firestorm over comments by Tom Flanagan, the prime minister’s former advisor. I offer no defence for the content of his remarks: there is none, in my view. In a way, his sin was the reverse of the court’s: If the court was too willing to ban speech without evidence of harm, Flanagan was unwilling to ban it even where the harm, as in child pornography, is self-evident.

But for goodness sake. He was not engaged in making child pornography. He did not counsel others to make it. He offered a mistaken assessment of where and when criminal sanctions ought to apply to it: mistaken, eccentric, even repugnant. But that is all it was. Unlike the Court, he is in no position to impress his views upon the rest of us.